TEMAS

POLÍTICA

"Political representatives: historical perspectives and up to date problems" (*)

2015-11-21 | Marco Giorgio

1. Historical terms and theorists of political representation

Europe has recently been through a tremendous crisis, which is not only financial, but also, especially for some aspects, mainly political as well as social. A crisis leading both institutions and citizens to reconsider many fundamental elements of the whole process of European integration, started after the Second World War. Among such critical elements, there is the democratic system of political representation, showing its different shapes: political instability, non-governability, electoral absenteeism, protesting antagonist movements, governments increasingly overwhelmed by technical and bureaucratic elements and expressing people 's will less and less.

The reasons of such crisis are varied and not all of them can be known or knowable. he aim of this short dialogue is to try, on the one hand, to go through the historical and juridical elements of the political representation (especially in Europe), and on the other, to try to highlight and understand which could be the problematic elements lately affecting the model of political representation as conceived by the main European institutions.

The historical part is not only didactics or recap oriented, this is why - as confirmed by one of the most important contemporary jurists, Paolo Grossi (currently judge in the Italian Constitutional Court) - the historical method, along with the prescriptive­ juridical method serves as a «critical conscience, disclos[ing] as complex what could appear simple, turning absolute certainties into relative ones».

Scientific literature does not provide a true univocal definition of political representation. By and large, one can say that political representation is a juridical element (for some aspects, even administrative) allowing some people to decide and act in favour of a wider and more organized or anyway legally defined social group (for example, residents in the same city or citizens of the same state).

Different, and not to be confused, is juridical representation, an essentially private law institute, disciplined by different national law codes.

A precise definition of political representation is not easy to provide Countless have been - in fact - the attempts to define in a clear way, contents and characteristics, trying to define what mechanisms are at the basis of the relationship between representatives and represented. Rousseau, deemed true representation impossible, since «sovereignty cannot be represented» and considered as «against the natural order of things, the existence of a ruling majority and a ruled minority». The only practicable way is therefore through "technical" representation, where the selected ones are linked by a total identical condition to the people, being their only revocable spokespeople in any moment (1). Montesquieu's approach is very different, considering political representation as the only practicable way; as the direct representation of all citizens is impossible. For Kelsen - and more recently for Popper - political representation is a necessary fiction, whereas for Orlando it is the choice of those with greater capacities; Schmitt instead defines it as «general will» and not as a «will shared by everybody» (2).

These two concepts, general will and everybody's will, appear very similar, though referring to different realities: everybody's will is the sum of each individual's will and therefore it could be equal to the number of people represented; the general will - on the other hand - is not the sum of all wills but its synthesis. Representing general will is possible, representing everybody's will is - actually - impossible.

In this passage the first fundamental and recurring element concerning representation is outlined: its foundations basically lie on approximation, and the real objective of representation is to start from everybody's indistinct will (the above mentioned «will of everybody») and to proceed in a - potentially infinite -series of approximations to et as close as possible to general will.

In a way - and here as well, with a good portion of approximation and imagination - we could say that representation is to juridical science what n is for maths: as n is used in maths to reach the closest number to the circle area, political representation is used in constitutional law to comply as much as possible with everybody's interests.

Then, which should be the basis of an effective democratic system? «The concern of democracy is translated into the concern for a democratic government, which is not the people's government, and not even the government of the arithmetic majority of the people. Anyway that government is the one where the greatest identification between rulers and ruled people lies, along with the least possible condition of oppression of the rulers on the ruled people».

Such short theoretical hints, namely the reference to some jurists and philosophers who were among the first theorists of the modern concept of political representation, show us how complex it may e to elaborate a specific definition of the concept of political representation and, above all, to solve the knots and the apparent contradictions due to its conceptual versatility.

We should start from some fundamental questions: what is political representation? Which evidences do historical events highlight? Which are the tools that could be offered today so that the relationship between representatives and represented can be physiological and not pathological?

(1) This statement refers to the following: «Sovereignty cannot be represented, for th e same reason that cannot be alienated; it consists essentially in the general will, and the will is not represented ; it is the same or different; there is no middle ground. The deputies of the people, therefore, are not and cannot be their representatives; they are merely their stewards: they cannot conclude anything definitively. Every law th e people has not rati fied in person is void, it is not a law», J.J. Rousseau, // contratto sociale, transl. M. Garin, Laterza, Roma 2000, page I 02.

Political representation is mainly a social fact: as old as man, it is expressed as an association based reality, as the real need of every community, even the tiniest: in each human community, many people tend to put in the hand of few people their requests (3). This offers a first fundamental element: political representation existed before the State, its organs and its law; it existed before democracy and its procedures.

Thus, how does the law consider the social phenomenon of political representation? It can ce1iainly provide some tools by which this concept can be expressed in the best way possible (4), elaborating models to «promote the coincidence between winning political representation and political power, so that it could coincide with the representation relationship as it is in reality» (5).

However the law cannot - and perhaps it must not - establish the concept of political representation in one only definition, as it «operates by itself, as a fact of political life, regardless of the law» (6). Therefore the law allows its «birth, development, death as per the modes the community considers useful and necessary (the electoral law, the rights of freedom, starting from the freedom of association and thought, and so on), but the law cannot be included in political epresentation as such» (7).

Where is then the starting point for a problem analysis? Which can be the elements offering the best way to understand the terms of political representation? Political representation as a multi-purpose concept is definitely tied to other subjects, first to popular sovereignty (8). Therefore, it is clear that representation as a social fact becomes political representation tout court only where sovereignty belongs to the people; the law tends to search those instruments making such affiliation more effective. For this very reason a profile of theoretical bases where the concept of popular sovereignty lies, must be outlined.

1.2. The People, a real subject

From all of this clearly emerges how it is necessary to go back to the bases of representation, reflecting about what are the pillars upon which it rests. Any model of representation cannot renounce to the «preservation of a bond, of a connection

(3) Cfr. D. Nocilla, Crisi de/la rappresentanza politica e partiti politic i, in Giur. cost.. 1989, page 531. Or just think of the ever-present tendency to establish new collective movements for the protection of new or different interests or new or re-aggregated social groups: see G. Pasquino, Crisi dei partiti e governabilitia,I1, Mulino, Bologna 1980, pages 128 and following.

(4) This approach is the opposite of the organicist and abstract vision of polit ical representation, where you end up, in fact, to consider the State (the Nation) as a body operating its sovereignty, while the people is the bearer of a bare right, incapable of exercising it. See G. U. Rescigno, Alcune note sulla rappresentanza politica, in Pol. dir., 1995, pages 549 and following.

(8) This i s even more fundamental in our legal system, as it is th e Constitution itself which in its first article, paragraph 2, defines the people as the entity with regard to whom falls the sovereignty of the people: "Sovereignty belongs to the people and is exercised in the manner and within the limits of the Constitution".

Between representatives and represented» (9). These are not only more or less innovating forms of direct participation (referendum, primary elections, political workshops, unstable patties, etc.) (10), but relationships, connections, affiliations, existing prior to the State; relationships whose meaning often frightens those who insistently look for an absolute neutrality which is humanly impossible to achieve. Of course, the reference is to those natural social coagulations, typical of any human community, we do not question the fundamental juridical concepts of neutrality and impartiality, which should never disappear.

As term of comparison, it should be kept a real subject, the people, and not its suspected representations as nation, general will, and general interest. This serves not only to re-establish the physiological dynamics of political representation, but mainly because the abstract construction of representation is at the origin of several risks. Recent history has shown how short was the transition from the theoretical concepts of nation (general will, general interests, etc.) to the concept of Sovereign state, going through totalitarian States. As a matter of fact, by using fictions, the ownership of sovereignty and consequent representation power was moved from the people to the people-State, therefore reaching a sovereign ethical and totalitarian State,(11). Leaving space to fictions or abstractions - in some cases forcing reality - it is then much harder to recognize the boundaries where such fictions or abstractions act.

This domain also includes a big part of the concerns connected with European parliamentarism. In fact, national parliaments (and in pat the one in Strasbourg as well) are affected today by the abstractness of some original concepts at the basis of their creation.This can explain the slow but progressive, marginalization of the elected chambers, which are those organs expressing at their best, a bond with popular representation, in favour of a reinforcement of the prerogatives of the decision making organs, governments and (national and inte1national) judicial authorities. If the model of representation is poorly designed, the first (and maybe the only) institutional victim is the Parliament.

2. Modern political representation and parliamentarism

When can we place the origin of the modern system of political representation? The transition that made possible the bi1ih of modern parliaments is marked from the moment the representatives consider themselves able to make decisions independently. This can only happen in a system based on the prohibition of imperative mandate, which arises "as a necessary condition - although ce1iainly not sufficient - to affirm the sovereignty of the assembly." (12)

(9) Ibidem.

(10) Just liquidity has been by some pointed as the model to follow in the modern systems of representat ion: see Z. Bauman, Modernità liquida, It. transl. by S. Minucci, Laterza, Roma-Bari 2002.

"With the conquest of the sovereignty by the bourgeois parliament, the ruler no longer decides, but the elected" (13), that is to say, the task of drafting a summary of the various individual instances is no longer attributed to the sovereign, but to the elected. This differs from the medieval model founded on a binding mandate, which requires a third mediating party, who ultimately decides. Thanks to the progressive transformation and subsequent weakening of a binding mandate, in fact, representatives are freer to mediate, to shape their positions. Briefly, it can be argued that the birth of modern parliamentarism stems precisely from the transformation of political representation: the ability of representatives to decide for themselves is the essential element through which you can get to oust the sovereign and his sovereignty completely, to transfer it to the people, to the representatives. This is where you can probably track down another shade of the original abstractness of representation: it is not sovereignty to shift from the sovereign to the people, but it is where changes occur.

2.1. Traditional models compared

In England, the model of bound representation (medieval) did not have an abrupt interruption - as it happened in the continent following the Revolution - but merged and evolved with the modern concept of free representation. From this point of view, the evolution of the British parliamentary system is very illustrative: there has been a gradual shift to a free political representation, without binding mandate. It did not erase, but rather enhanced the capacity of the Parliament to represent social pluralism, turning it into political unity (14). In this sense, a key to its interpretation is offered not only by the traditional British «pragmatism», but also - and mainly- by a notion of national sovereignty which is not abstract, where no attempt is made to represent the "political and spiritual entity fictitiously and forcibly, to trace it to a unit. "In other words, the English experience, unlike the French one, free representation has been built, starting from an historical consolidated experience and not making a social "tabula rasa", thus developing an unreal concept of representation, impossible indeed, in which, from formal equality, a "national sovereignty" is created with several unique individuals. A French nation (later on European) thoroughly chopped at the beginning, and reassembled later on only within the boundaries dictated by state procedures: "From real subject the people turns into a socially undifferentiated artificial object." (16)

To sum up what in England was a natural evolutionary step due to political divisions and greater social complexity, in France was a more forced and rigid form of time evolution.However, it is important to highlight that the British model (which is not perfect and subject to a representation void) is not a system, in some way, slavishly portable and adaptable to other contexts. In fact, the British political system in the course of three centuries has gradually but effectively solved three major issues of constitutional and social politics: relationship with the Church and its prerogatives ; relationship between the aristocracy-emerging middle class and the Crown; relationship between the elites and the masses. The British political system was able to nip the problem at its very roots: in the case of the relationship between the Church and the State, both functions merged; in the case of relationship with the Crown, absolutistic drifts were immediately dashed. They also managed to avoid the radicalization of social conflicts, implementing careful inclusive policies, as in the case of the claims of workers, effectively brought back within the bounds of the Labor Patty, avoiding the onset of any revolutionary or antagonistic option. In other national contexts, however some of these issues suffer from the effects of a long path of adjustment, which is still, somehow, in the course. The long transitions are an element typifying the legal and social changes in Italy, often accompanied by sudden interruptions or accelerations, which exacerbate the elements of uncertainty and instability.

From this point of view, a reconstruction that welcomes a greater autonomy of the elect is tottering, based on a majoritarian model - as the one built in Italy -. In fact, because of decades of strong patty influence it would create a more virtuous system, that "brings the voter to escape from the influence of the patty, to vote according to his personal trust in the candidate; this latter, in turn, would be led to refer not to is party but to his electorate."(17)

3. Political parties between mediation of interests and national representation

There have been long discussions on the steady reduction of the parliament's prerogatives in favor of the government, less of a performer and more of a legislator. The global crisis of the political representation models is not, however, a chronic and irreversible crisis. Surely there is a profound difficulty to make relatively fast and clear decisions, as much as possible shared and above all ce11ain to and above all certain for the achievement of the general interest. This aspect is felt particularly in the social, political and economic domains; for these reasons the tendency to rely on Strongly legitimated leaders, able to take decisions quickly and effectively, is increasing. (18) The model of representation based on pat1y mediation is a recent phenomenon. Leibholz was among the first to identify as the central point of political representation, the synthesis between general and individual interests.

In fact, the parties' mediation model allows citizens to choose what they consider the general interest of the country, while taking into account their own particular and concrete interests (19); in essence, parties "ensure that the people may appear in the political sphere as a really active unit."(20)

This ambivalence makes sheds light on how the party mediation shifts the problem of democracy and representation from the state external system to an internal party system. In fact, if pat1ies become the only mediators between the state and the people, then they will reproduce internally, a democratic system, comparable - in terms of effectiveness - to the one guaranteed by the state order (21).

By analyzing the relationship between elected and voter, it is impossible not to consider the role of pat1ies. The connection of the patties with society has been much the same path. You could say that, in some cases, we are dealing with a 'party bubble', in which the'\parties have an impact on the administration of the state much reduced compared to the past, but the prerogatives of political parties did not follow the same path. You could say that, in same cases, we are dealing with 'party bubble', in which the parties have an impact on the administration of the state much more than their level of representation of collective interests. What are the ways to restore the balance so that the activities of the representatives correspond to the reality actually represented?

The direct result of this structure of relations has an immediate impact on the functioning of the State, its political organs and its administrative apparatus. A real democracy inside political parties is not, in fact, an end in itself, but an essential requirement for democracy within the whole representation system (22). Today, this aspect is perhaps one of the most undervalued elements, because the focus is increasingly shifting on decision-making speed and on pragmatism rather than on the inner content of responsibility and visible democratic procedures.

All the above, cannot be explained only based on the common ground observation of the "bureaucratic mass patty, with a uniform social base and strongly ideological" crisis. In fact, an association, an institution, falls into a crisis, not only when it no longer responds to the needs of its members, but since they have, in some way, reorganized the safeguard of their interests and have already found (or are refining) tools and models to meet those same - or changed - needs. Do not confuse evolution and reorganization with reduction and debasement.

For the analysis of the issue, it might be useful to change the setting, to understand better also that political representation cannot always be traced back to precise rules. In fact, in introducing the rules the system would be open to some disto1tions. For example: if the pa1ty could revoke the dissident parliamentarian, the whole notion of representation and parliament would be emptied; if citizens could call back their elected definitively (the so-called recall, in use, for example, in some American states) you might run the risk of a populist and demagogic drift, less attentive to the common good.

We pointed out, at the beginning, that a fundamental starting point is a reasonable reconstruction of the concept of political representation, freed from theoretical abstractions and theoretical simplifications. A number of assumptions were also put forward, about which avenues could be covered to rebuild the relationship between the elected (parliaments) and the voters (people I citizens) and the consequent need for a new definition of political party (a mediating subject that allows citizens to be elected). We need to find feasible paths through which the parliament as a body can take back some of its prerogatives, allowing a part of that power that 'migrated' to government I courts I bureaucracies to come back into the stream of popular representation, if necessary even with new ways and different functions (think of new technologies).

The latest events clearly show that the parliament is no longer at the center of the institutional system; it has lost its role of being the place of representation to become the "normative workshop available to governments"(23). Gradually but steadily, it lost its central position, owned until the first half of the nineties of the last century. This process does not seem reversible in the short term; however, "it may be constitutionally guided and limited, so that it does not simply translate into a drastic reduction of the quality of democracy."(24)

From this point of view, an imp011ant role could be played by the functions of inspection and control of Parliaments, through their enhancement and an update of the latest technologies. In other words, one could fill the representation gap by strengthening the instruments of inspection and control. If I as parliament, cannot (or can no longer succeed) to decide as much as I used to do, at least I should be in a position to control in detail those governments, European institutions and technical and bureaucratic apparatus that make decisions for me.

Now, none of this is on the horizon. Moreover, along with the ongoing systemic crisis of the political representation, we observe an increasingly exacerbating cultural crisis. We do not only see the political and legal systems no longer working properly, but also the same fundamental design of the legal system that is no longer clear (i.e., it becomes increasingly difficult to perceive the significance - in legal terms the rationale - of the institutions and, therefore, of the statutory provisions enacted). In this context it is not enough just to study constitutional law to rebuild a performing system of political representation, but it takes a real experience of social representation to remind us that the need for representation (interests focused on common good) is above all a human dimension and not only a technical and legal construction.